The International Criminal Court

What is the International Criminal Court?

Situated in The Hague in the Netherlands, the International Criminal Court (ICC) is a permanent court which was created under the Rome Statute of the International Criminal Court (the Rome Statute) in 1998; this statute came into force in 2002. The ICC is designed to be a court of last resort for the most serious crimes. Thus appeals in domestic courts must be exhausted before the ICC can intervene. This also applies if, for whatever reason, the national courts refuse to try the perpetrator.

Structure of the Court

There are four ‘organs’ of the court: the Presidency, the judiciary, the Office of the Prosecutor, and the registry. The Presidency comprises of a President, a First Vice-President and a Second Vice-President whom are elected by the judges of the court for a period of three years (this is renewable). The judges who are part of the Presidency work on a full time basis. They are responsible for judicial functions, administration and external relations. One of their most important jobs is assigning cases to chambers. They also ensure the ICC has a good relationship with national courts.

The judiciary comprises of three divisions: the Appeals Division, the Trial Division and the Pre-Trial Division. Both the Trial and Pre-Trial divisions must comprise of no less than six judges who have experience in criminal trials. The Appeals Division must comprise of the President and four other judges.

As well as the Presidency and judiciary, there is also an Office of the Prosecutor. This office is responsible for receiving referrals of crimes which have occurred within the jurisdiction of the court, examining them and prosecuting them in the Trial Chamber. The ICC is also assisted by a variety of administrative offices, including the Registry.

What crimes can be prosecuted in the ICC?

Article 5 of the Roman Statute provides the categories of crimes which can be prosecuted in the ICC. The categories are genocide, crimes against humanity and war crimes. Crimes of aggression will also be able to be prosecuted in the ICC, but not before 2017. Articles 6 – 8 provide a much more detailed account of which crimes fall under ICC jurisdiction. Such crimes include torture or inhumane treatment, intentionally directing attacks against a civilian population, employing poisonous weapons and violence directed towards life and person.

The ICC will only prosecute individuals, not states or groups of people.

How are cases started?

Any State party to the Rome Statute can ask the Office of the Prosecutor to carry out an investigation. If a State is not party to the Rome Statute, they can still request an investigation if they accept the jurisdiction of the ICC over crimes committed by one of their nationals, or in their territory. The Office of the Prosecutor will then decide if the ICC has jurisdiction over the alleged crimes, if so, they will start the investigation.

The Prosecutor can also decide to open an investigation. This could occur where they have received information from individuals, governmental or non-governmental organisations and feel as though there is a real basis for an investigation.

How are cases heard?

The Pre-Trial Chamber will authorise a prosecutor to start or continue with their investigation. During the investigation, they must ensure it is done integrally and the rights of the defence are upheld. They are also responsible for upholding national security during the investigation.

The main role of the Trial Chamber as laid out in Article 64 of the Rome Statute is to adopt the necessary procedures to ensure that the trial is fair and expeditious whilst respecting the rights of the accused. If the Pre-Trial Chamber has given their authorisation for an investigation to take place, the trial will be heard by the Trial Division. The Trial Chamber will decide if the accused is guilty or not guilty, and give out punishments – the maximum being 30 years imprisonment, or life imprisonment in extreme cases.

The Appeal Division can review the conviction and the sentence given by the Trial Division. They can also hear appeals about jurisdiction or admissibility of evidence decided in the Pre-Trial Division.

During the investigation, they must ensure it is done integrally and the rights of the defence are upheld.

A unique thing about cases in the ICC is that victims have the opportunity to give their views and observations to the court. This was granted in provisions in the Rome Statute.

Cases before the ICC

The ICC is currently in the news due to the controversy around the cases of the Deputy President and President of Kenya, and Kenya’s decision to leave the ICC. They are both being tried separately for crimes against humanity which stem from the violence after the 2007 elections where over 1,000 people were killed and 600,000 were made homeless. In the 2007 elections they were on opposing sides and are accused of targeting each other’s ethnic groups; however they formed an alliance in March 2013. They both deny the charges and their trials are taking place now and in November.

Bosco Ntaganda is currently in ICC custody awaiting his trial in 2014. Ntaganda is the commander of operations of the Patriotic Forces for the Liberation of Congo (FPLC). He was indicted by the ICC on seven counts of war crimes and three counts of crimes against humanity. These crimes are alleged to have occurred in 2002 and 2003 and have been carried out by the FPLC.

Simone Gbagbo and Laurent Gbagbo are husband and wife Ivorian politicians. Laurent is the former president of Côte d’Ivoire. They have been indicted by the ICC of four counts of war crimes each due to the violence that occured after the election in 2010. Simone is said to have played a major role in the post-election violence due to being in her husband’s inner-circle.

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